NLRB v. Canning will examine Article II, Section 2 of the Constitution, which gives the president the power to make appointments during periods of Senate recess, with the provision that they will expire at the end of the Senate’s next session. This power has come into question because of the highly political nature of appointments and confirmations, and has grown to be regarded as an abuse of power by the many presidents who have used it.

President Obama made three such “recess appointments” to the NLRB after Senate Republicans blocked his nominations in session. The DC Circuit court ruled that these appointments were invalid because the Senate was technically not “in recess” at the time. The opinion, in fact, significantly narrowed the scope for when such appointments might occur, stating that senators always could create “pro-forma” sessions to eliminate the necessity for the president to fill vacancies.

The Legislative Clinic’s amicus curiae brief will urge the Supreme Court to uphold the DC Circuit court’s ruling because, for one, the senate does not go into recess for very long anymore. Additionally, recess appointments undermine the senate’s role to advise in presidential nominations.

Lauria Chin (’15), one of the students working on the brief, says, “The facts of the Canning case do give occasion for challenge, because of the changing congressional practices that give reason to question President Obama’s most recent exercise of the recess appoint power, and reason for the Supreme Court to review and make a determination on the parameters of the president’s powers.”

Siding against the administration places several of the students in an interesting situation, according to Kealy, as they are writing an amicus brief on behalf of the senate despite their political leanings. However, “this shouldn’t be an ideological battle,” Kealy explains. “It should be one to settle this procedural question. It raises some interesting questions about what the original intent was, and how the founders intended the recess appointments to work.”

Allison Gruber (’15), for example, spent time working for President Obama’s campaign. “At first it seemed strange to be opposing the Obama administration, but this really isn’t a political issue. It’s a question of the balance of executive and legislative power.”

Kealy believes that students in the Legislative Clinic, an unbiased party outside of the political fray, are in a unique position that can look at the issue from a purely academic standpoint.

“We don’t have a political axe to grind, unlike the other writers of amicus briefs, and this is an issue that cries out for that kind of impartiality,” he notes. “ I pitched it to my students as the brief that Ted Kennedy would have written if he were still around.”

In addition to the tremendous amount of research and work involved in drafting and filing the brief, the Legislative Clinic faces another challenge. “Because the Court has not heard a recess appointment case in some time, the case law on the area is thin,” says Chin. “Our goal is to be as balanced as possible in supporting the DC Circuit’s holding, so we were digging into just about all we could to be as grounded as possible in our brief.”

“It’s particularly interesting to me to see the way in which power has evolved,” says Gruber. “We’ve done a great deal of research on the history of these appointments, from the founding until today, and it’s fascinating how technological advances, like the travel time from the capitol to the states of the various representatives, interact with political power structure.”

A ruling in Noel Canning’s favor would be far-reaching: if the court determines that the recess appointments were improper, hundreds of decisions by the NLRB could be invalidated. While such a finding could cause disruption, the Legislative Clinic argues that the issue of advice and consent of the senate is too important to be ignored.

“There is a very real role for the senate to play in the appointment process,” says Kealy. “Just because it takes a long time and it’s difficult and contentious, I’m not sure if that’s a good reason to upset the power-sharing that the founders put into place.”

For the students involved, the experience of writing filing a brief with the Supreme Court is rare and invaluable.

Says Shirley Pan (’14), “I never expected getting the chance to write an amicus brief in any of my classes. It entails a lot of continuous research and editing, but Professor Kealy keeps us on track and anchors our progress.”

In writing an amicus brief, strategy is important, says Chin. “An amicus brief isn’t necessarily just an opportunity to have a say, but to fill in the gaps where information might be lacking from the party briefs. It takes a lot of care to present the information in a way that isn’t wholly one-sided.”

Chin says that the experience of writing the brief has helped to clarify her career goals. “The clinic as a whole has been a revealing experience for me. I know I want to pursue a career in government, and I found myself very engaged in the research we were doing. I enjoyed seeing how strategy can play out in governmental procedure, and the intertwining of politics and the law.”

Gruber also plans to put her law degree to use in politics. “It’s fascinating to write a brief, especially knowing that you’re writing it more for some justices than for others,” she says.

The Supreme Court is hearing arguments for NLRB v. Canning through January.